Commentary By

Elizabeth Slattery writes about the proper role of the courts, judicial nominations, and the Constitution as a legal fellow at The Heritage Foundation. Read her research. She hosts SCOTUS101, a podcast about everything that’s happening at the Supreme Court.

It’s a good day when all nine justices of the Supreme Court
make a stand for liberty.

On Wednesday, the court held unanimously
that the excessive fines clause of the Constitution’s Eighth Amendment applies
to the states. The ruling is potentially a major win for property owners and
individual citizens facing excessive fines, fees, and forfeitures—to say
nothing of Tyson Timbs, the man who fought the seizure of his SUV all the way
to the Supreme Court.

Timbs was arrested after selling $225 worth of heroin to
undercover police officers on two occasions, and he pleaded guilty. He was
sentenced to a year of home confinement and five years’ probation, and was
ordered to pay approximately $1,200 in fees and court costs.

But then, Indiana moved to forfeit the car he was driving
when he was arrested: a $42,000 Land Rover, which he had bought with money from
his father’s life insurance policy.

The basis for this seizure was a practice
called civil
forfeiture, a law enforcement tool that lets police seize money or
property that is alleged to have been used to commit a crime, or to be the
proceeds of the crime.

Although in this case the state secured a conviction against
Timbs, that is hardly the norm in civil forfeiture cases. Very often, law enforcement
will seize assets of the accused without an actual conviction. This can be done
in cases that are “in rem,” meaning the
property itself is the defendant, not the individual.

Under federal law and in most states, the owner of the
forfeited property does not need to be charged or convicted to be permanently
stripped of their home, car, or life savings.

>>> Listen to “SCOTUS 101,” a podcast with Elizabeth Slattery and friends bringing you up to speed on what’s happening at the Supreme Court.

These same laws also typically grant comparatively few due
process protections to property owners, and allow law enforcement agencies to
keep some or all of the resulting proceeds, and spend these funds with little
oversight.

That financial incentive has led many agencies to treat
forfeiture as a way to raise revenue, and because winning cases is relatively
easy, governments often pursue forfeiture cases even when there is little evidence
of actual criminal wrongdoing.

A ‘Deeply Rooted’
Right

Timbs clearly committed a crime, but his case raised another
issue: His SUV, which was seized as an instrumentality of that crime, was
valued at more than four times the maximum criminal fine he faced under Indiana
law.

Was this seizure an “excessive fine” in violation of the
Eighth Amendment?

Two Indiana courts agreed that it was, but the state Supreme
Court held that the clause had never been applied to the states, and therefore
are not bound by it.

When first ratified, the Bill of Rights applied only to the
federal government. Beginning in the 1920s, the Supreme Court began “incorporating”
some of its protections against state governments through the due process clause
of the 14th Amendment.

Prior to Timbs’ case, the Supreme Court had incorporated the Eighth Amendment’s two other clauses that bar excessive bail and cruel and unusual punishment, in Schilb v. Kuebel (1971) and Robinson v. California (1962), respectively. But the excessive fines clause had been left out—until now.

Writing for eight of the justices, Justice Ruth Bader
Ginsburg’s opinion—announced on her second day back after
a lengthy absence—held that “the historical and logical case” for
incorporation was “overwhelming.”

In order to be incorporated against a state, a right under
the Bill of Rights must be “deeply rooted in this [nation’s] history and
tradition,” and “fundamental to our scheme of ordered liberty.”

As Ginsburg pointed out, “the Excessive Fines Clause traces its
venerable lineage” back nearly a millennium, to Magna Carta in 1215 and later
to the English Bill of Rights of 1689. Protection against abusive fines was
universally understood to be a foundational right under English law—an
understanding even the earliest colonists carried with them to the New World.

In fact, Ginsburg noted that by 1787, “the constitutions of
eight [states]—accounting for 70 [percent] of the U.S. population—forbade
excessive fines.” Today, every state prohibits excessive fines or requires they
be proportional. The right against excessive fines is clearly a “deeply rooted”
one.

But it is also fundamental to our free society. As the
Supreme Court’s opinion notes, “[e]xorbitant tolls undermine other
constitutional liberties.” History is replete with examples of this. From
England’s Star Chamber to the Black Codes in the American South, arbitrary and
excessive fines have been used time and again to undermine individuals’ basic
civil rights.

Indiana, for its part, attempted to sidestep the broader
issue of incorporation, arguing that the amendment “does not apply to its use
of civil in rem forfeitures” because its application specifically to civil
forfeiture “is neither fundamental nor deeply rooted.”

Indiana also asked the Supreme Court to overturn a prior
case, Austin v. United
States (1993), in which the justices unanimously recognized that
civil forfeitures have historically been understood to act, “at least in part,
as punishment.” Modern forfeiture practices share these punitive overtones, and
so long as “in rem” forfeitures are at least partially punitive, they are
“subject to the limitations” of the excessive fines clause.

Unanimous Ruling

The justices roundly dismissed Indiana’s arguments.

First, the justices declined to overturn Austin v. United States. With that decision still in place, the protections it afforded under federal law must now be applied to the states in identical fashion.

Second, the justices held that incorporating rights through
the 14th Amendment requires the Supreme Court to ask “whether the right
guaranteed—not each and every particular application of that right—is
fundamental or deeply rooted.” Thus, the Supreme Court need only show that the
general right against excessive fines is fundamental, not whether there is a
“deeply rooted” right against excessive civil forfeitures.

Justice Clarence Thomas concurred in the Supreme Court’s
judgement, but disagreed as to its method for incorporating the clause. While
the majority opinion relied on the due process clause of the 14th Amendment—something
that many conservative and libertarian legal scholars have argued against—Thomas
would have relied on the 14th Amendment’s privileges or immunities clause to
incorporate the right against the states.

Justice Neil Gorsuch, in a short concurrence, shared Thomas’
sentiment that, as “an original matter” the privileges or immunities clause
would be the better avenue for incorporation.

Thomas maintained that reading substantive rights into the due
process clause is “oxymoronic” because due process “speaks only to ‘process’”
or procedural protections. He observed that the Supreme Court’s substantive due
process doctrine “allow[ed] the Court to fashion fundamental rights without any
textual constraints … [such as in] the Court’s most notoriously incorrect
decisions [including] Roe v. Wade [and] Dred Scott v. Sandford.”

While there was some disagreement among the justices as to
the best path to incorporation, all nine agreed that the excessive fines clause
applies both to the federal and state governments. And once a right is
incorporated, Ginsburg wrote, “there is no daylight between the federal and
state conduct it prohibits.”

Justice for Victims

Incorporating the excessive fines clause gives the victims
of unjust property seizures a new avenue to recover their money or property in
court. But its real impact won’t be known until the courts settle another
important question: What is an “excessive” civil forfeiture?

That’s a question for another day, but hopefully Timbs v.
Indiana will mark a turning point in a broader effort to rein in abusive
property seizures by state and local governments across the nation.

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